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A Lesson from the Snowden Manhunt
The National Law Journal
International diplomatic quarrels involving the United States frequently spark a frenzy of media attention. Dramatic aspects of the manhunt for Edward Snowden are a classic example, ranking among the best of "007"-type tales of intrigue. However, government contractors should not overlook the report of possible criminal prosecution if investigators failed to complete the required background check before Snowden was approved for a security clearance. Although some Americans may think prosecutors are bluffing, they are not. As a former assistant U.S. attorney in the District of Columbia, I've prosecuted such cases before, and know the government will do so again. The Snowden saga provides a sobering lesson to everyone who makes a certification to the government.
Budget battles about right-sizing the federal government should not obscure the fact that crucial work is performed by thousands of federal workers who need security clearances before they can be hired. The protocol for getting a clearance requires that an investigator conduct a rigorous background check of an applicant and submit a detailed report about the results of the investigation. Reports take weeks to compile because the investigator must locate and interview current and former employers, co-workers, friends and neighbors of an applicant. The investigator asks these sources a detailed set of questions ranging from their relationship with the applicant to knowledge of the applicant's beliefs and habits. As the last step in the background check, the investigator certifies that everything in the report is accurate. Relying on the accuracy of that certification, the government can then grant a security clearance and hire the applicant.
Although certifications are not often double-checked before an applicant is hired, the government requires random audits to ensure that the certified interviews actually occurred. A second investigator contacts a selection of sources to question them about whether they remember being interviewed as well as to compare details of the second interview with those contained in the certified report. If discrepancies appear with one source for an applicant, the second investigator interviews additional sources. When agents from the Office of Personnel Management assemble evidence that an investigator falsely certified to completing a background check, they refer the case for prosecution.
Jurors returning a guilty verdict, and judges imposing a sentence of incarceration, took these cases as seriously as we did precisely because of the important work assigned to those needing clearances.
It remains to be seen whether Snowden's case will be made into a high-profile, public example of the actual harm caused by a security clearance issued after a false certification. My former team found a chilling example of the potential harm that could result from a false certification. As we prosecuted an investigator who falsely certified the background investigation of an applicant applying to work in a nuclear facility, we envisioned the damage that could have occurred in a post-September 11 world if a terrorist had infiltrated the plant.
The lesson about false certifications from the Snowden manhunt is not limited to hackers, leakers and background investigators. The government routinely requires certifications from its contractors, who provide everything from weapons systems used in combat to health care services paid by Medicare and Medicaid.
Designed to ensure human safety and the financial stability of government programs, these certifications cannot be considered routine by those who make them. The government is serious about each certification, and it is hunting for those who make them falsely, whether intentionally or recklessly.
We need to warn our clients that the intensity of the government's manhunt goes beyond criminal investigation. The False Claims Act (FCA) allows the government to recover treble damages in civil actions. Often more significant to our clients, the government can administratively exclude individuals or organizations from government contracting for years after submission of a false claim. As if this were not enough, the FCA has, since the passage of the Lincoln Law during the Civil War, mobilized an immense force of civilian investigators to search for and report false statements made by government contractors. These relators, as they are called, may receive millions of dollars (up to 30 percent of the government's recovery) based on information they provide. In order to spur lawyers to assist, the FCA also allows attorney fees to be paid in addition to the relator's percentage of the recovery.
Among the most important advice we can provide our clients involved in government contracting is the recommendation to create a robust compliance program based on standards and procedures that ensure hiring competent compliance personnel, training employees on correct practices, conducting effective internal monitoring to ensure accurate claims are submitted, and encouraging employees to report problems that could lead to false claims. One person to whom I described the FCA incentives said that "it was better than the lottery." Whether or not that is true, the message cannot be repeated enough to our clients: Someone is watching the certifications you sign, with a huge financial incentive to report anything that appears false. Make sure there is nothing for him to find.
Thomas E. Zeno, a former assistant U.S. attorney for the District of Columbia, is now of counsel to Squire Sanders. An AUSA for more than 25 years, he investigated and prosecuted economic crimes involving health care, financial institutions, credit cards, computers, identity theft and copyrighted materials. Practicing in the firm's groups of white collar, investigations and enforcement, as well as health care, he can be reached at Thomas.Zeno@squiresanders.com.